Wisconsin's new drunken driving laws prove not to be quick-fix solution to longstanding problem

Dec. 30, 2010

Officer Mike Weinberger patrols the roads the evening of June 23 in the Town of Menasha. Wisconsin raised the ante with the most ambitious package of drunken-driving reforms in decades. One of the primary aims of the law, which took effect July 1, is to convince impaired motorists to stay off the roads. / Post-Crescent photo by Dan Powers

Written by

Jim Collar

Post-Crescent staff writer

OWI law at a glance

Details of changes to Wisconsin’s drunken driving law that took effect July 1:

Felony threshold: Established fourth-offense drunken driving as a felony. Previously, drunken drivers were not considered felons until the fifth offense.

Interlocks: Required installation of interlock devices that require breath tests to start vehicles for repeat drunken-driving offenders and for first-time offenders who have a blood-alcohol level of 0.15 percent or greater. Legal limit is 0.08 percent.

Expanded probation: Allowed judges to place offenders on probation for second and third offenses. Previously, probation wasn’t an option until the fourth offense.

Winnebago Safe Streets: Made Winnebago County’s pilot program, Safe Streets Treatment Options Program, available for use statewide. Participants receive less jail time than they would through traditional sentencing. They’re placed on probation with alcohol treatment and community service among the requirements.

First-offense misdemeanor: Made first-offense drunken driving a misdemeanor when a child younger than 16 is in the car. Wisconsin remains the lone state that treats a first offense as a traffic citation.

Criminal processing fee: Increased fees for people convicted of drunken driving from $20 to $163 in addition to fines.

License reinstatement: Increased fee for reinstating a driver’s license after suspension or revocation from $60 to $200 for those who lost the license because of an OWI offense.

Minimum confinement: Required those convicted of a seventh, eighth or ninth offense to serve a minimum of three years in prison. A person convicted of a 10th offense must serve at least four years.

Source: Wisconsin Legislative Council

Wisconsin’s OWI law history

1911: Wisconsin passes its first drunken driving law, which states, “no intoxicated person shall operate, ride or drive any automobile, motorcycle or similar motor vehicle along or upon any public highway of this state.”

1949: Lawmakers put chemical testing into the statutes. Then, a blood-alcohol content of 0.15 percent was considered evidence of intoxication, but still required corroborating evidence to find a defendant guilty.

1977: Wisconsin law changed to consider a 0.10 percent BAC as sufficient evidence for conviction without corroborating evidence.

1981: Lawmakers specifically made driving with a 0.10 percent BAC illegal. Before enactment, the content was considered sufficient to prove prohibited intoxication, but wasn’t technically illegal in itself.

1991: Lawmakers lowered the BAC to 0.08 percent for those with two or more offenses. Vehicle immobilization, interlock and vehicle seizure provisions also were added.

2003: Wisconsin’s BAC standard was lessened from 0.10 percent to 0.08 percent in response to the possibility of losing federal money for highways.

2007: Seventh, eighth or ninth offenses became punishable by a $25,000 fine and up to 10 years of imprisonment. A 10th or subsequent offense became punishable by a $25,000 fine and up to 12½ years in prison.

2009: Reforms to take effect July 1, 2010, included making fourth offense a felony (previously fifth offense); requiring interlock devices for repeat offenders and for first-timers with a BAC of at least 0.15 percent; and allowing judges to place offenders on probation for second and third offenses (previously fourth offense).

Source: Wisconsin Legislative Reference Bureau

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APPLETON — Six months after Wisconsin’s tougher drunken driving laws took effect, the number of offenders treated as felons in the Fox Valley grew by more than 50 percent, a Post-Crescent search of court records shows.

It’s no surprise. Many fourth-time offenders now face the possibility of a felony charge and prison time. The previous threshold was five convictions.

What’s murkier, though, is whether stronger punishments are keeping drunken drivers off the streets in a state with one of the worst track records for drunken driving in the country.

Overall, drunken driving charges and citations decreased 6 percent in the Fox Valley from July through November, compared to the same time frame in 2009, The P-C found.

But Winnebago County Dist. Atty. Christian Gossett said fluctuating numbers are common year-to-year, and statistics don’t always tell the whole story.

“I don’t think it reflects how many drunken drivers are out there at any time,” he said. “I think it’s a function of the number of police officers on the street.”

Police say it’s still too early to tell whether law is changing attitudes.

The sanctions, which took effect on July 1, marked a significant turning point in how the state treats drunken driving. The state has long been considered lax in terms of its penalties for those driving under the influence.

Lt. Nick Scorcio of the Wisconsin State Patrol said it was an important step forward, but suggests stronger penalties are just part of what’s slowly nudging residents away from a culture in which impaired driving is considered acceptable.

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Scorcio said it’s not an overnight process, but he believes that people increasingly view the offense differently than they did in the past.

“Nowadays, if you drive impaired — especially if you’re arrested or involved in a crash — there’s a lot more shame than there used to be,” Scorcio said. “You’re a lot more embarrassed.”

Paying a steeper price

Court records demonstrate one fact: Those who didn’t pay heed to the new laws are indeed feeling the stronger consequences.

Outagamie, Waupaca and Winnebago counties each produced more felony drunken driving charges from July through November compared to 2009 levels. Fourth-time offenders represent the bulk of those charges.

In Outagamie County, 16 of 35 people charged with felonies for drunken driving were accused of a fourth offense from July 1 through November. In Winnebago County, fourth-time drunken drivers made up 14 of 46 drivers charged with felonies. Calumet County charged two drivers with fourth-offense felonies in that time frame, while Waupaca County charged one.

The four counties combined produced 94 felony charges during the five months compared to 60 last year. Waupaca County was the lone of the four to have a decrease in felony charges. There, prosecutors charged six this year compared to 12 in 2009.

Lawmakers made a fourth-offense drunken-driving conviction a felony if it occurs within five years of a previous offense.

Gossett said that while the penalties are tougher, he’s not certain whether earlier exposure to felony charges will eventually reduce repeat offenses.

He said about half of those caught once don’t repeat. There’s a slimmer drop-off from a second or third offense, and slimmer yet with each subsequent arrest.

“Our best opportunity to change the behavior is on the first or second offenses,” he said.

Lawmakers also added the possibility of criminal charge for a first offense — in instances where drivers have children in the car. That provision has been far less a factor in the four-county region since the law took effect.

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One driver was charged with first-time drunken driving as a misdemeanor due a child passenger in Waupaca County from July through November while two were charged in Winnebago County. Neither Calumet nor Outagamie counties charged anyone under the new provision.

Preventing recidivism

Last summer, lawmakers touted aspects of the law that went beyond punishment to address treatment. Chief among them was a provision requiring ignition interlock devices.

The devices require drivers to take an alcohol-free breath test before they can start their vehicles. Under the former law, judges had more leeway on whether to order use of a device. Judges would set a length of time during which a driver was required to use one.

Often, drivers failed to heed those orders. Drivers could wait for the time to pass — driving illegally in the meantime — knowing that when that time expired, they could obtain a license again.

Under the new law, those drivers would not get a license again without proof that an interlock was installed. The clock on an order doesn’t start ticking until an offender applies for a license and officials review the paperwork.

Greg Mueller of Greenville’s National Interlock Service has taken notice of the interlock provision.

“Business is definitely on the rise,” he said.

Under the previous law, judges couldn’t order interlocks for first-time offenders. Now, they’re required for all repeat offenders and first-time offenders with a blood-alcohol level of 0.15 percent or greater.

Mueller said the impact of the interlock law goes beyond numbers.

He’s convinced use of the devices could have a significant impact on recidivism. Drivers often have jarring learning moments on that first occasion when trying to start the car with alcohol on the breath.

“It really helps,” he said. “It’s an awakening.”

Annie Levknecht, alternative treatment coordinator for Outagamie County, said the carrot-and-stick approach offered by the Safe Streets program also is showing promising signs. Outagamie County began the program in July. The program was created in Winnebago County as a pilot, and only became available statewide on July 1.

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Second- and third-time drunken drivers who agree to participate in the program undergo treatment. For doing so, the courts stay portions of their jail sentences. Rather than serving that jail time right away, it’s held for use if needed. Should those convicted fail to abide by terms of the program, they’ll serve portions of that time behind bars.

There’s 100 percent compliance among the 14 people now participating.

“If they’re not compliant, having those days stayed being lockup days is a great incentive,” Levknecht said.

Advocates: More work needed

Capt. John Matz of the Winnebago County Sheriff’s Department said his agency’s arrests in 2010 are on pace with 2009.

Matz credited the Legislature for taking an important step in attacking drinking and driving, but added, “I think it’s too early to determine whether there’s really any impact.”

Some argue that Wisconsin hasn’t gone far enough.

A report released in December by the Substance Abuse and Mental Health Services Administration placed the state first in the country for the prevalence of drunken driving.

It carried a small victory. The number of Wisconsin drivers who reported operating while intoxicated fell by nearly 3 percent from a similar report released in 2008. Still, the report said 23.7 percent of Wisconsin drivers surveyed acknowledged having driven under the influence within a year.

Frank Harris, a state policy analyst with Mothers Against Drunk Driving, said the changes that went into effect in July were significant but didn’t fully address drunken driving as the serious problem it is.

The organization will continue its push on lawmakers to have all first-time offenses considered crimes, he said, noting that all offenders should have to use interlocks.

The organization also is pushing Wisconsin lawmakers to OK sobriety checkpoints, which would allow police to set up stations and test drivers.

A bill that would have legalized checkpoints was introduced in the last session. Lawmakers, Harris said, were “too afraid” to bring the bill as far as a public hearing.

Gossett figures tougher laws will go hand-in-hand with a culture shift in the state. Lawmakers will listen when residents decide they can no longer tolerate the injuries, deaths and other damages caused by drunken driving.

He also wants to see sobriety checkpoints. “It’s the only thing that’s ever been shown to deter drunken driving.”

Scorcio said Wisconsin is headed in the right direction, albeit slowly.

“I think the more people become aware of the penalties, the bigger the deterrence factor it will become,” Scorcio said. “Alcohol consumption is part of our culture. I think there’s a stigma that keeps increasing with people who drive impaired.”